Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the Authority on Respondent's
exceptions to the attached decision of the Administrative Law Judge. The
General Counsel filed an Opposition to the Agency's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1),
(5) and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) by unilaterally implementing a change in crew assignments for
electronics technicians.

Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions, and recommended Order.

II. Judge's Decision

The facts are fully set forth in the Judge's decision and are briefly
summarized here.

The Agency, a long-range radar site, provides 24-hour, 7-day-per-week
radar surveillance at its Radar Maintenance Work Center (Radar Center). The
Radar Center employs eight WG-11 electronics technicians who work in crews of
two technicians per shift, rotating through 28-day cycles of three shifts.

In January 1992, a supervisor posted the February 1992 schedule
containing changes in the crew assignments of four technicians. The Agency did
not give the Union prior notification of the changes. The Union submitted a
bargaining request, asking that the assignment change be held in abeyance
pending bargaining on the impact and implementation of the change and proposing
that employees be allowed to choose crew assignments based on seniority. In
response, the Respondent rescinded the changed schedule and the parties met to
discuss crew assignments. During the meeting, the Respondent advised the Union
that the parties would discuss crew assignments in the future. However, on
February 12, 1992, without any further discussion or bargaining with the Union,
the Agency notified the Union that it was planning to post and implement the
previously posted crew assignments. The crew assignments were implemented on
March 1, 1992, without bargaining.

Several technicians filed a first-step grievance, alleging that they
were being unjustifiably "segregated" because other employees at the base could
choose among four different work schedules based on seniority. ALJ's Decision
at 7. The Agency denied the first-step grievance,(2) following which the Union, representing the technicians,
filed a second-step grievance, also alleging that the technicians were being
discriminated against by not being permitted to choose among work schedules. As
a remedy, the Union sought to negotiate with the Agency over the crew schedule
using a seniority-based system. The Agency denied the second-step grievance,
stating, among other things, that there was no evidence of discrimination
between the technicians and other employees.

The Union then filed the unfair labor practice (ULP) charge which led
to the complaint in this case. The charge alleged that the Agency implemented
the change in crew assignments without providing the Union with an opportunity
to negotiate on the substance or the impact and implementation of the
change.

The ALJ concluded that, under the second sentence of section 7116(d) of
the Statute,(3) the filing of the grievance in
this case did not bar the subsequently-filed ULP. The ALJ determined that,
although the factual predicates of the grievance and the ULP were the same, the
grievance concerned only preferential treatment of employees and the ULP, in
contrast, concerned only the Agency's statutory obligation to bargain over a
change in working conditions.

The ALJ further concluded that the Respondent violated the Statute, as
alleged in the complaint, because the crew assignments were changed without
bargaining with the Union.(4) The ALJ found, in this connection, that the Union's proposal
to make crew assignments based on seniority was negotiable because, as all
affected technicians were equally qualified, the proposal did not interfere
with management's rights under section 7106(a) of the Statute.

III. Positions of the Parties

A. Respondent

The Agency argues that the ALJ erred in concluding that the grievance
and the ULP were based on different theories. According to the Agency, the two
actions are based on the same theory--that the Agency committed a ULP by
changing conditions of employment without first bargaining with the Union--and
such is demonstrated by the fact that both actions sought bargaining as a
remedy. As a result, the Agency contends, the filing of the grievance barred
the ULP charge. The Agency relies, in part, on the Authority's position,
adopted by the court, in American Federation of Government Employees,
AFL-CIO, Local 916 v. FLRA, 951 F.2d 276 (10th Cir. 1991) (Local
916).

The Agency also argues that the ALJ erred in finding, based on
testimony, that all affected electronics technicians were equally qualified to
perform the required tasks. In addition, the Agency argues that the ALJ erred
by failing to respond to the allegation in the complaint that "[o]n
January 15, 1992, the Charging Party learned of Respondent's intention to
change the method of crew assignments for the electronics technicians, WG-8,
who perform radar maintenance." Complaint, G.C. Exh. 1(b). According to the
Agency, the General Counsel produced no evidence to support the allegation that
the Agency intended to change, or changed, the method of crew
assignments for WG-8 electronics technicians.

B. General Counsel

The General Counsel argues that the ALJ correctly concluded that the
grievance and the ULP charge were based on different legal theories. The
General Counsel also argues that the record evidence supports the ALJ's finding
that all of the electronics technicians were equally qualified to perform the
required tasks of a WG-11 electronics technician. In addition, the General
Counsel argues that the Authority should reject the Agency's arguments that the
ALJ's decision did not comport with the allegations in the complaint. According
to the General Counsel, the Agency was on notice that the actual issue before
the ALJ concerned the Agency's unilateral change in crew assignments for WG-11
technicians, and this issue was fully litigated before the ALJ.

IV. Analysis and Conclusions

A. The ALJ Did Not Err in Concluding that Section 7116(d) of the
Statute Did Not Bar the Filing of the Grievance Because the Grievance and the
ULP Involved Different Legal Theories

The second sentence of section 7116(d) of the Statute governs whether a
ULP is barred by a previously-filed grievance.(5) Pursuant to this provision, an aggrieved party has an option
of raising certain issues(6) under a grievance procedure or as a ULP charge, "but not
under both procedures."(7) As stated by the U.S. Supreme Court, this statutory scheme
precludes the same aggrieved party from raising "identical issues" under both
procedures, but does not "preclude a union in its institutional capacity as an
aggrieved party from filing an unfair labor practice charge to enforce its own
independent rights merely because an employee has initiated an appeal or
grievance procedure, based on the same factual situation, to enforce his
individual rights." Cornelius v. Nutt, 472 U.S. 648, 665 n.20 (1985).

In each case, the determination whether a ULP charge is barred by an
earlier-filed grievance requires examining whether "the ULP charge arose from
the same set of factual circumstances as the grievance and the theory advanced
in support of the ULP charge and the grievance are substantially similar."
U.S. Department of the Army, Army Finance and Accounting Center,
Indianapolis, Indiana and American Federation of Government Employees, Local
1411, 38 FLRA 1345, 1351 (1991) (Army Finance), petition for
review denied sub nom.American Federation of Government Employees,
AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992)
(Local 1411). Only if both requirements are satisfied is a subsequent
action barred by a former one. Thus, in Overseas Education Association v.
FLRA, 824 F.2d 61, 72-73 (D.C. Cir. 1987) (OEA), the court,
affirming the Authority, concluded that a ULP charge alleging discrimination in
management's proposal to eliminate a position held by a union official, and a
grievance protesting that official's notice of dismissal, were based on
different theories. Id. at 72-73. Similarly, the Authority has found
that the filing of a ULP charge did not bar a subsequently-filed grievance
where the theory advanced in the ULP was that the grievant's proposed
suspension violated the Statute because it was based on retaliation for
participation in union activities and the theory advanced in the grievance was
that the suspension violated the parties' collective bargaining agreement
because it was not taken for just and sufficient cause. American Federation
of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal
Employment Opportunity Commission, 49 FLRA 906, 914-15 (1994).

On the other hand, in Local 1411, 960 F.2d at 178, the court
held in agreement with the Authority that, in contrast to OEA, a ULP
charge barred a subsequently-filed grievance where the grievance rested on the
same factual predicate and alleged the same statutory and contract violations.
In another case, the Authority similarly found that a ULP charge and a
grievance were based on the same theory where the ULP alleged that the activity
violated the Statute by proposing to discipline the grievance based on reprisal
for engaging in union activities and the grievance alleged that the suspension
"constituted harassment of the grievant for his union activities." Federal
Bureau of Prisons and American Federation of Government Employees, Local
3690, 18 FLRA 314, 315 (1985).

In the case now before us, it is undisputed that the grievance and the
ULP arose from the same set of factual circumstances. The issue is whether the
"theory advanced in support of the ULP charge and the grievance are
substantially similar." Army Finance, 38 FLRA at 1351. If the theories
are not substantially similar, section 7116(d) compels a conclusion that the
ULP is not barred by the grievance.

With respect to the theory advanced in support of the grievance, the
ALJ found that the second-step grievance "addresse[d] only preferential
treatment afforded to some employees."(8) ALJ's Decision at 9. An examination of the grievance itself
confirms the ALJ's finding. The grievance consists of a form and an attachment,
which explains the nature of the grievants' complaint. In the attachment, the
Union representative filing the grievance asserts that the purpose of the
grievance was to "convinc[e]" a representative of the Respondent to:

grant [the grievants] the opportunity [the Respondent] ha[d] so
obligingly allowed the employees who work straight days to do. This is to
select between four work schedules.

It does not stem from the fact they are the only twenty-four hour
manned duty section. It stems from the fact [that] all other installation
employees are allowed to make choices in their available work schedules and the
Radar work center employees are not.

Id.

The Agency's recognition that the grievance concerned discrimination
against the grievants is clear from the Station Manager's denial of the
grievance, in which he concluded that he had found "no evidence of
discrimination between employees who work uncommon tours of duty and those who
do not[.]" G.C. Exh. 1-d. The denial of the grievance does not refer to
the Statute and does not discuss the issue of whether the Respondent was
required to bargain with the Union before changing crew assignments. Although
the grievance states as a fact that the Respondent "altered the personnel crew
schedules as some employees were moved to other crews[,]" the grievance does
not raise or mention any issues concerning the Agency's failure to notify or
bargain with the Union before implementing the changes.(10)

With respect to the theory advanced in support of the ULP charge, the
ALJ found that the charge asserted only that the crew changes violated the
Statute because they were implemented without an opportunity for the Union to
bargain over them. We agree that the charge encompassed only this theory. More
particularly, the charge includes no mention of preferential treatment, and
states only that:

On 14 February 1992, the Activity implemented crew personnel changes
in the Radar work center . . . without consulting in good faith and/or
affording the Union the opportunity to negotiate at its
request.

G.C. Exhibit 1(a).

We reject the Agency's argument that section 7116(d) bars the ULP
because both the grievance and the ULP requested bargaining as remedies. First,
the record does not establish that the grievance and the ULP requested
bargaining over the same matters and, even if bargaining is ultimately ordered
by both tribunals, there is no reason to conclude that such bargaining will
result in a redundant or even overlapping remedy.(11) Second, even assuming that the remedy sought in both fora
are the same, the Agency has provided no support, and none is apparent, for the
proposition that actions seeking the same remedy present the same issue under
the second sentence in section 7116(d) and/or substantially similar theories
under the Authority's Army Finance test.(12)

In sum, the record supports the Judge's conclusion that the theories in
the grievance and the ULP charge are different. The issue in the grievance was
whether "Radar Center employees were being segregated, or discriminated
against, by not being able to choose their own schedules." Judge's Decision at
7. This is clearly a different theory than that advanced in the ULP charge. As
the Judge found, "there would be no need for the arbitrator to address the
unfair labor practice issue" because the "grievance sought only to establish
preferential treatment to employees, while the [ULP] sought to establish a
statutory violation of Respondent's failure to bargain a change in working
conditions." Id. at 9-10. As the legal theories are different, the ALJ's
conclusion that the ULP charge was not barred by the grievance is fully
consistent with, and compelled by, not only the plain wording of the Statute
but also by judicial and Authority precedent interpreting and applying the
Statute.(13)

In reaching this conclusion, we find that the Respondent's reliance on
the position argued by the Authority, and adopted by the court in Local
916 is misplaced. In that case, a union sought court review of the
Authority's decision setting aside an arbitration award. 951 F.2d at 276. The
court agreed with the Authority that, under section 7123(a)(1) of the Statute,
which provides for judicial review of FLRA orders reviewing arbitration awards
only where the orders involve a ULP, the court had no jurisdiction over the
proceeding because it did not involve a ULP. Id. at 278-79. Local 916
did not concern whether any subsequent ULP filed over the matter raised in the
grievance would have been barred by section 7116(d); the court specifically
held that the case did "not involve the duplication . . . prohibited by §
7116(d). . . ." Id. at 279. The decision, and the Authority's decision
reviewed therein, speak only to the fact that, whether or not the matter raised
in the grievance could have been raised as a statutory ULP, the grievance
itself did not raise a statutory ULP issue.

With respect to the latter point, there is no argument, or other basis
on which to conclude, that, in the case now before us, the Union was prevented
from raising in its grievance an allegation that the Agency's change in crew
assignments violated the Statute. However, unlike the first sentence in section
7116(d), which precludes adjudication in a ULP proceeding of issues which "can
properly be raised under an appeals procedure," whether or not they are in fact
raised,(14) the second sentence of section 7116(d), which is applicable
here, states a different rule. It plainly precludes only subsequent litigation
of issues that, in the discretion of the aggrieved party, were raised earlier.
Accordingly, whether or not the Union could have raised statutory issues in its
grievance, the fact remains that the Union did not do so. Accordingly, we
conclude, in agreement with the ALJ, that the filing of the grievance did not
bar the filing of the ULP charge under section 7116(d) of the Statute, and we
deny this exception.

B. The ALJ Did Not Err in Concluding that All Affected Technicians
were Equally Qualified to Perform GS-11 Duties

Exceptions to an ALJ's decision must "state the grounds for the
exceptions." 5 C.F.R. § 2423.27(a)(3). In addition, an agency's supporting
brief must contain "[t]he argument, presenting clearly the points of fact and
law relied on in support of the position taken . . . with specific page
reference to the transcript and the legal or other material relied on." 5
C.F.R. § 2423.28(a)(3).

The Agency has provided no support for its exception to the ALJ's
finding that the supervisor certified all eight of the electronics technicians
as being equally qualified to perform the required tasks of a WG-11 electronics
technician. The Agency fails to even discuss this exception in its brief. As
the Agency has failed to support this exception, the exception is denied.

C. The ALJ Did Not Err In Deciding That the Respondent Violated the
Statute by Implementing Changes in Crew Assignments of WG-11
Technicians

The Authority does not judge a complaint based on rigid pleading
requirements. U.S. Department of Justice, U.S. Immigration and
Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154,
173 (1991). In particular, the Authority will consider matters that are fully
and fairly litigated between the parties, even where such matter is not
specified in a complaint. U.S. Department of Labor, Washington, D.C., 51
FLRA 462, 468 (1995).

Although the complaint erroneously referred to the technicians as WG-8
employees, the record shows that the Agency was well aware that the issues
before the ALJ concerned the WG-11 technicians. Among other things, both the
Union President and the supervisor testified at the hearing that at the time of
the alleged ULP, all the technicians in question were WG-11 employees.
See Transcript at 15-16, 140. As such, we find that the Agency has
failed to support its assertion that the ALJ erred in deciding that the case
involved changes in WG-11 crew assignments.

The Agency also has failed to establish that the ALJ erred in
concluding that the Agency violated the Statute by implementing a change in the
actual crew assignments, despite the complaint's assertion that the
alleged unlawful change was in the method of making those assignments.
The record amply demonstrates that the parties understood that the issue before
the Authority concerned the change in the crew assignments themselves.
See, e.g., Transcript at 9 (representative of the General Counsel
stated that the Respondent violated the Statute "when it unilaterally changed
crew assignments"); Id. at 103 (Respondent's representative stated that
"what we're talking about here, is crew alignments"). There is no assertion, or
other basis in the record to find, that the Respondent did not understand the
subject of the dispute, or that the dispute was not fully and fairly litigated.
Therefore, we deny this exception.

Based on the foregoing, and noting that no exceptions were filed to the
ALJ's recommended Order, we conclude that the ALJ did not err in holding that
the Agency violated section 7116(a)(1), (5) and (8) of the Statute by
unilaterally implementing a change in crew assignments for electronics
technicians, and we issue the following Order.

V. Order

Pursuant to section 2423.9 of the Authority's Regulations and section
7118 of the Statute, OLAM Southwest Air Defense Sector (TAC), Point Arena Air
Force Station, Point Arena, California, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of employees exclusively
represented by the Union by changing

crew assignments of electronics technicians at the Radar Maintenance
Work Center, without first completing bargaining with the Union over the
decision to change crew assignments, or over the procedures for implementing
the change and appropriate arrangements for affected employees.

(b) Refusing to bargain with the Union over the changes in working
conditions of unit employees.

(c) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:

(a) Upon request of the Union, rescind the crew assignments of the
electronics technicians at the Radar Maintenance Work Center that were made on
February 14, 1992 (to begin on March 1, 1992), and return to the crew
assignments which existed prior to that date.

(b) Give notice to, and upon request, negotiate with the Union over the
decision to change crew assignments of electronics technicians at the Radar
Maintenance Work Center and/or over the procedures for implementing the change
and appropriate arrangements for affected employees.

(c) Post at its facilities in OLAM Southwest Air Defense Sector (TAC),
Point Arena Air Force Station, Point Arena, California, where bargaining unit
members represented by the Union are located, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commanding Officer, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such Notices
are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Regulations, notify
the Regional Director of the San Francisco Regional Office, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of our employees
exclusively represented by the National Association of Government Employees,
Local R12-85, AFL-CIO, by changing crew assignments of electronics technicians
at the Radar Maintenance Work Center, without first completing bargaining with
the Union over the decision to change crew assignments and/or over the
procedures for implementing the change and appropriate arrangements for
affected employees.

WE WILL NOT refuse to bargain with the Union over the changes in
working conditions of unit employees, such as the method by which crew
assignments of Radar Maintenance Work Center personnel are made.

WE WILL NOT in any like or related manner, interfere with, restrain or
coerce our employees in the exercise of their rights assured them by the
Statute.

WE WILL, upon request of the Union, rescind the crew assignments of the
electronics technicians at the Radar Maintenance Work Center that were made on
February 14, 1992 (to begin March 1, 1992), and return to the crew assignments
which existed prior to that date.

WE WILL give notice to, and upon request, negotiate with the Union over
the decision to change crew assignments of electronics technicians at the Radar
Maintenance Work Center.

_____________________________ (Activity)

Date:_____________ By:_______________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103-1791, and whose telephone number is: (415) 744-4117.

This proceeding arose under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. § 7101, etseq., herein called
the Statute, and the Rules and Regulations of the Authority, 5 C.F.R. §
2411, etseq. It was initiated by an unfair labor practice charge
filed against the Olam Southwest Air Defense Sector (TAC), Point Arena Air
Force Station, Point Arena, California (herein called the Respondent) by the
National Federation of Federal Employees, Local R12-85, AFL-CIO (herein called
the Union). The Complaint alleges that Respondent engaged in unfair labor
practices within the meaning of section 7116(a)(1) and (5) of the Statute by
unilaterally implementing a change in crew assignments for electronics
technicians at Respondent's Radar Work Center.

A hearing was held before the undersigned in San Francisco,
California at which all parties were afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue orally. Briefs
were filed by Respondent and the General Counsel and have been carefully
considered.(1)

Findings of Fact

Respondent is a long-range radar site assigned to the Tactical Air
Command. The Radar Maintenance Work Center (herein called the Radar Center)
provides 24-hour, 7 days a week radar surveillance, including maintenance,
preventive maintenance, repairing malfunctions and recording events.
Supervisors at the site include, Thomas Hayes, the Respondent's Station
Manager; Ronald Dzuba, the Radar Center supervisor; and Leonardo Balambao, a
supervisor.

At all times material herein, the Union was certified as the exclusive
representative for Respondent's general schedule and wage grade employees,
including electronics mechanics at the Radar Center. Respondent and the Union
are parties to a collective bargaining agreement. At all times material herein,
Michael Terry, who works as an electronics mechanic in the Radar Center, held
the position of Union President, the official designated to receive
notification of changes in conditions of employment.

A. The work schedule of electronics mechanics at the Radar
Center.

There are eight electronics mechanics employed at the Radar Center who
work in crews of two mechanics per shift. In order to supply 24-hour, 7 days a
week maintenance coverage to the Radar Center, the four crews work a 28-day
cycle rotating through a day shift (0800 to 1600) to a midnight shift (0001 to
0800), and finally an evening shift (1600 to 2400). These eight employees
receive a four day break after finishing the midnight shift and rotating to the
evening shift, and a two day break after finishing the evening shift and
rotating to the day shift.(2)

The above schedule allows electronics mechanics employees to plan
vacations in conjunction with the four days off between the midnight and
evening shifts when scheduling their annual leave at the beginning of the year.
Although Respondent's supervisors post a monthly schedule, Terry also drafts a
yearly schedule for employees to assist them in projecting their annual leave
for their requests at the beginning of the year.(3)

In March 1992, Dzuba certified all eight of the electronics mechanics
as being equally qualified to perform the required tasks of a WG-11 electronics
mechanic. Not only did all eight have the same wage grade, all eight employees
had the same position description. In addition, all the electronics mechanics
are often required to work alone, with full responsibilities, and also are
required to train new employees.

Prior to the Union gaining exclusive representative status in 1990,
Respondent changed crew assignments of electronics mechanics at the Radar
Center on a temporary basis for illnesses, and on a permanent basis if an
employee was leaving the station.(4) Dzuba testified that on one occasion, back in 1987-88,
before the Union was certified as the exclusive representative and prior to the
onset of any bargaining obligations, Respondent realigned crews because two
employees were not getting along. The crew realignment implemented in March
1992 was however, the first crew realignment since the Union was certified in
1990.

During that time, when Respondent realigned crews, normally the
supervisors asked the individuals involved if they would rather remain with
their crews and work with another employee or switch to another crew.

C. Respondent posts changes in crew assignments in January 1992,
and then rescinds change after Union submits bargaining request.

On January 15, 1992, Dzuba posted the schedule for February 1992
which included changes in four employees' crews. Dzuba noted on the schedule
the following:

The Union did not receive any prior notification of the crew alignment
changes before the schedule was posted on January 15, 1992. Furthermore,
employees were not asked by supervisors about their preferences on crew
assignment changes as happened in the past.

On January 16, 1992, the day after the crew changes were posted,
Terry and his crew partner, Dave Ackroyd, who is not a Union official,
discussed the changes with Dzuba and Balambao. Dzuba and Balambao informed
Terry that the change in crews was made to alleviate a problem of two employees
on a crew who were not getting along. Dzuba's testimony that three crews were
having problems with each other, while not totally consistent with what he told
Terry, that one crew was not getting along does establish a reason for the
change. Dzuba also stated that as a result of the problems with the crews,
maintenance work was not being completed, however, there is no evidence that
any employee was disciplined for failing to complete an assignment. On that
same day, Ackroyd expressed his concerns about his scheduled leave in
conjunction with the four day break between his rotation from the midnight
shift and the evening shift.(5) Ackroyd also explained to his supervisors that a change in
his crew would affect his ability to care for his children as his wife's
schedule had been coordinated with his crew assignment, and days off, prior to
the change.

Later that same day, the Union submitted a written bargaining request
to Station Manager Hayes. In the bargaining request, Terry submitted the
Union's first proposal as follows:

I request that the schedule change be held in abeyance until such
time that the Union has been afforded the opportunity to negotiate on the
Impact and Implementation of this schedule change.

After receiving the Union's bargaining request on January 16,
1992, Respondent's representatives contacted civilian personnel at Travis Air
Force Base who is responsible for servicing all the personnel at
Respondent, for advice on how to proceed. That individual, Barbara Neilson,
Chief of Labor and Employee-Management Relations, advised Respondent to pull
down the schedule change and bargain with the Union. Neilson testified that
under Article 3, § 4 of the parties' Agreement, Respondent was
not required to give the Union advance notice because this was not a
"significant change", but conceded that once the Union expressed an interest to
bargain, there was a duty to bargain. Neilson also testified that Respondent
was allowed to implement the realignment under Article 20, § 3
of the Agreement because the crew assignment change was "temporary."
Contrariwise, Dzuba more accurately described the crew assignment change as
permanent. On January 16, 1992, the schedule with the crew assignment
changes, posted on January 15, 1992 was removed by Respondent.

D. Respondent and Union discuss seniority as a basis for crew
assignments on February 5, 1992, and Respondent again implements the crew
assignment changes shortly thereafter.

On January 28, 1992, Terry received a memorandum from Station
Manager Hayes informing him of a "special meeting" scheduled for
February 5, 1992. On that day, Terry met with Dzuba, Balambao and Hayes
and discussed the crew assignments. At that time, there was no schedule change
proposed, or "on the table." Dzuba, Balambao and Hayes expressed their views on
why a change in the crew assignments should be made, while Terry proposed again
that the crew realignment should be held in abeyance and the Union be allowed
to negotiate. In addition to raising concerns voiced earlier by Ackroyd about
how crew realignment would effect leave, Terry proposed that employees be
allowed to select their crew assignments by seniority.

Respondent, by either Dzuba or Hayes, replied to the Union's proposal
with its view that by selecting crew assignments based on seniority would not
give it the flexibility in assigning employees. Respondent told Terry that it
would consider the proposal, but at that time Respondent's representatives did
not think they could accept it. Terry agreed to ask the employees about their
preferences with respect to crew assignment changes, while Hayes was going to
check with civilian personnel. At the conclusion of the meeting, Hayes told
Terry that the parties would discuss crew realignment in the future, including
any of the Union's proposals on how to implement the change. Hayes also
informed Terry that he would give him his decision on whether to go ahead with
the crew assignment changes when he returned from a business trip. Terry's
impression that the parties would meet again to discuss crew assignments was
based on Hayes' comments.

After February 5, 1992, neither Balambao nor Hayes received any
request from the Union for the invocation of the Federal Mediation and
Conciliation Service for its mediation assistance, or a notice from the Union
that it was invoking the services of the Federal Service Impasses Panel.
Similarly, after February 5, 1992 neither Balambao or Hayes received any
additional proposals from the Union with respect to crew realignment.

Sometime between the meeting on February 5, 1992, but prior to
February 12, 1992, Respondent's managers contacted Neilson at Travis.
Although Neilson was not present at any of the meetings with the Union on the
issue, including the February 5 session, she concluded nonetheless that
Respondent had the right to make a decision on the crew realignment and to
announce it.

Thereafter, on February 12, 1992, Hayes wrote Terry a memorandum
stating that he appreciated the Union's contributions during the
February 5 discussion concerning crew changes, but that he was planning on
implementing the new crew assignments effective March 1, 1992. Terry did
not receive the letter until February 14, 1992, the day the crew
assignments were posted. The crew assignment changes posted on
February 14, 1992 were the same changes that were initially posted in
January 1992 and taken down by Respondent after recognizing its bargaining
obligation. Respondent changed the crew assignments as announced on
March 1, 1992.

E. Grievance filed by employees on crew alignment change; Union
pursues it at second step of the grievance procedure.

On February 26, 1992, after the schedule change was posted at the
Radar Center, several electronics mechanics initiated a grievance on the crew
changes. Those employees alleged in the grievance that they were being
unjustifiably segregated because other employees at Respondent's base had the
ability to choose between several types of alternative work schedules. Radar
Center employees thus sought the same opportunities as the other employees on
base. Dzuba denied the first step grievance on February 26, 1992 asserting
that alternative work schedules were not feasible at the Radar Center because
it was the only 24-hour operation on the base.

Shortly after the first step grievance was denied by Dzuba, the Union
represented the employees and filed a second step grievance with Station
Manager Hayes. The issue there was the same as the first step i.e. that
Radar Center employees were being segregated, or discriminated against, by not
being able to choose their own schedules. The second step grievance did not
raise any issues concerning Respondent's failure to notify, or bargain with the
Union before imple-menting the change in crew assignment. As a remedy for the
grievance, the Union sought to negotiate with Respondent over the crew schedule
using a seniority based system. On March 16, 1992, Hayes denied the second
step of the grievance, maintaining that Dzuba had complied with all policies
and regulations in making crew assignment changes, and there was no evidence of
discrimination. Thereafter, the Union filed the instant unfair labor
practice.

F. Impact on employees of crew assignment change in March
1992.

The crew assignment changes in March 1992 extended not only to
disruptions in employees' planned annual leave and vacation plans, but also
created problems with employees' child care responsibilities and commuting
arrangements to the base. With respect to annual leave, the unique schedule of
these employees allowed for a four day break between the midnight and evening
shift and employees scheduled vacations in conjunction with the four day break.
When Respondent unilaterally changed the crew assignments an employee like
Ackroyd, who had scheduled a vacation around the four day break, would now be
forced to take annual leave for those four days. Respondent maintains that
throughout its discussions with the Union, it expressed its willingness to
accommodate employees in any manner with respect to annual leave. Neilson,
apparently was told by Respondent's management that it offered the Union a
hundred percent accommodation for leave problems. She testified that this
fulfilled Respondent's bargaining obligation. However, even if employees were
allowed to adjust their annual leave, and take annual leave for the regular
days off that had previously been scheduled, they would be forced to take
annual leave when they normally would not have to.

The change in crew schedules also appears to have impacted directly on
employees' child care commitments and travel arrangements to work. In this
regard, Ackroyd and his wife coordinated their work schedules to allow one of
them to watch their children during the day. When the crew assignment change
was implemented with only two weeks notice, Ackroyd's wife (who is not a
federal employee) was required to miss regular days of work to take care of
their children, the days Ackroyd would have been off had the schedule remained
the same. One employee was also required to make new transpor-tation
arrangements to work because of the crew change.

Conclusions

The General Counsel's position is that Respondent unilaterally changed
a condition of employment by changing crew assignments in the Radar Center in
March 1992, without fulfilling its statutory bargaining obligation, in
violation of section 7116(a)(1) and (5) of the Statute. It therefore asserts
that the change in crew assignments posted by Respondent on February 14,
1992, and effective on March 1, 1992, was the first crew realignment since the
Union became the exclusive representative of Respondent's employees in 1990.
Prior to 1990, Respondent made crew assignment changes without a union
representing employees, and therefore had no duty to bargain. In February/March
1992, the employees were represented and the Union sought to negotiate the crew
realignments, but Respondent implemented before negotiations were complete.

Respondent makes several arguments, the most prominent being the
instant unfair labor practice is barred under section 7116(d) of the Statute,
that the changes in the crew assignments were deminimis, and
finally, that the parties had reached impasse during the February 5, 1992
negotiation session.

1. Whether the unfair labor practice is barred under section
7116(d) of the Statute.

In determining whether a grievance is a jurisdictional bar to an unfair
labor practice under section 7116(d) the Authority examines whether the subject
matters of the unfair labor practice charge and grievance are the same, in
terms of the factual predicate and theory. Thus, it specifically looks at
whether the unfair labor practice charge and the grievance arose from the same
set of factual circumstances and whether the theories advanced in support of
the unfair labor practice charge and the grievance are substantially similar.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland, 43 FLRA 318, 323-24 (1991) (relying on the decision of
the United States Court of Appeals for the District of Columbia Circuit in
Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir.
1987)).

In this case, the same set of factual circumstances underlie both the
second step grievance and the later filed unfair labor practice and both were
filed by the Union in its institutional capacity. To avoid this obstacle, the
General Counsel maintains that the theories advanced in the two separately
filed matters are different. Accordingly, it contends that the theory of the
grievance is that some employees at Respondent received preferential treatment
because they were permitted to make choices in their available work schedule
through an alternative work schedule while the Radar Center employees were not
allowed to do so. On the other hand, it contends that the unfair labor practice
theory is not concerned with discrimination but rather, whether Respondent
implemented a change in conditions of employment without affording the Union
the opportunity to bargain. Preferential treatment, in its view, is not at
issue in the unfair labor practice case.

Respondent's disagreement is found in its assertion that the theory
upon which both the grievance and the unfair labor practice are based arise, in
essence, out of the existing duty to bargain over a change in conditions of
employment for bargaining unit members. It therefore, argues that any remedy
sought by the Union in either the grievance or the unfair labor practice would
be predicated upon a violation of some existing duty to bargain.

The plain language of the grievance, reveals that it addresses only
preferential treatment afforded to some employees. Although an arbitrator might
concur with Respondent and find that there was in fact no preferential
treatment, or discrimination, among its employees, there would be no need for
the arbitrator to address the unfair labor practice issue, the failure of
Respondent to negotiate the crew assignment changes. The same might also be
true if the arbitrator found discrimination and ordered Respondent to negotiate
with the Union in its institutional capacity, since such an order would still
not impose any statutory obligation to bargain on Respondent. The fact that
both situations sought a remedy of negotiation with the Union would therefore,
seem irrelevant. Nor does it appear that the unfair labor practice issue would
ever come before an arbitrator. In short, the grievance sought only to
establish preferential treatment to employees, while the unfair labor practice
sought to establish a statutory violation of Respondent's failure to bargain a
change in working conditions. SeeBureau of the Census, 41 FLRA
436, 446-447 (1991).

Based on the foregoing, it is found that while the factual situation in
both the grievance and unfair labor practice are identical, the grievance does
not address Respondent's Statutory obligation to bargain a change in working
conditions and, therefore, the instant unfair labor practice is not barred by
section 7116(d) of the Statute.

2. Respondent had an obligation to bargain the change in crew
assignments.

The decision to change tours of duty is negotiable only at an agency's
election under section 7106(b)(1) of the Statute. In Department of the Air
Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988), the Authority
held that a "tour of duty is the hours of a day (a daily tour of duty) and the
days of an administrative workweek (a weekly tour of duty) that constitute an
employee's regularly scheduled administrative work week."

If the change in crew assignment had a foreseeable impact which was
more than deminimis under the Statute then an obligation to
bargain over the impact and implementation exists notwithstanding Respondent's
right to make the change. There is little question that an obligation to
bargain over impact and implementation of any change in job duties or work
assignments can exist, even where management is exercising a section 7106
right. See, for example, U.S. Department of Justice,
Immigration and Naturalization Service, United States Border Patrol, San Diego
Sector, San Diego, California, 35 FLRA 1039, 1047 (1990).

A. The change in crew assignments involved a reasonably foreseeable
impact which was more than deminimis.

Department of Health and Human Services, Social Security
Administration, 24 FLRA 403 (1986) established the standard to be
applied in determining whether a change in conditions of employment by an
agency is deminimis. There the current standard was
established as follows:

. . . In examining the record we will place principal
emphasis on such general areas of consideration as the nature and extent of the
effect or reasonably foreseeable effect of the change of conditions of
employment of bargaining unit employees. Equitable considerations will
also be taken into account in balancing the various interests
involved.

The Authority also made it clear that the number of employees involved
is not a controlling consideration in the analysis, and therefore, the number
of employees involved in a change of employment conditions will not serve to
extinguish bargaining obligations. SSA, supra; seealsoPortsmouth Naval Shipyard, Portsmouth, New Hampshire,
45 FLRA 574 (1992). Understandably the deminimis
inquiry does not focus primarily on the actual effect of a change in employees'
conditions of employment, but on the foreseeable effect of the change. U.S.
Customs Service (Washington, D.C.) and U.S. Customs Service, Northeast Region
(Boston, Massachusetts), 29 FLRA 891 (1987).

Applying the above standards to this case, it appears that the change
in employees' crew assignments does give rise to a duty to bargain. The instant
change in crew assignments of four employees, under their unique schedule
required them to report to work when normally they would have days off.
Further, these employees regularly scheduled their vacations around the four
day break between the midnight and evening shifts, and it seems to be
reasonable to conclude that the change in crew assignments would have a
disruptive effect on employees' lives. Similar changes have already been found
to have more than a deminimis impact, since action would
disrupt responsibilities and commitments that employees had made predicated on
the previously scheduled days off. See, e.g., Veterans
Administration Medical Center, Prescott, Arizona, 46 FLRA 471
(1992). It was not only reasonably foreseeable that employees would be forced
to rearrange travel plans, take more annual leave, and rearrange child care
responsibilities, but Ackroyd and Terry informed and discussed with Respondent
some of the complications the crew assignment change had on the employees'
lives on separate occasions before Respondent implemented the
change.

Respondent suggests that the impact of the crew assignment changes was
outside the confines of the facility, such as child care responsibilities,
spousal commitments, and travel plans, are not factored into the equation
whether a change in conditions of employment is more than
deminimis. Respondent finds these as personal
inconveniences over which the "employee" has substantial control. Moreover,
Respondent asserts the employee could significantly mitigate the effect.
Authority's holdings are quite the contrary, for it has found that changes in
conditions of employment which intrude on an employee's family, travel and/or
educational plans and predicated on periods when the employee was not scheduled
to be at work, are reasonably foreseeable impact and trigger a duty to bargain.
Department of the Air Force, Sacramento Air Logistics Center, McClellan Air
Force Base, California, 39 FLRA 1357 (1991).

Based on the instant record, it is found that a reasonably foreseeable
effect of the change of conditions of employment of bargaining unit employees
existed and therefore, the change in conditions of employment had more than a
deminimis impact herein.

In such circumstances, it is found that Respondent had an obligation to
bargain concerning the impact and implementation of the crew assignment change
herein.

B. The crew assignment change was also substantively
negotiable.

Section 7106(a) of the Statute provides that subject to section
7106(b), nothing in the Statute shall affect management's right to assign work.
Further, the right to assign work includes the right to determine whether
individual employees possess the necessary qualifications, and the position or
positions to which the work will be assigned. U.S. Department of the
Treasury, Customs Service, 38 FLRA 770 (1990).

The record discloses that both prior to, and after the change in crew
assignment was implemented on March 1, 1992, employees worked the same
rotating schedule. The crew assignment change of employees at the Radar Center,
who held the same grade, qualifications, and position descriptions is a matter
which was substantively negotiable, and the Union's proposal to negotiate crew
assignments by seniority was also negotiable.

In this case, the Union's proposal that crew assignments based on
seniority does not interfere with management's rights. Such proposals
concerning the assignment of employees from one or more shifts to another does
not involve different positions or different duties, but only involves
employees' performing the duties of their positions during a different shift of
work. Thus a proposal based on service computation dates or seniority in
determining such shift assignments, as was made by the Union here, would be
negotiable. Department of the Air Force, Lowry Air Force Base, Colorado,
16 FLRA 1104, 1107 (1984).

The Union's proposal that crew assignments be based on seniority simply
does not interfere with any management right because it does not prevent
Respondent from securing any coverage it deems necessary, to determine when
work will be performed. Nor does it interfere with Respondent's ability to
assign particular duties to particular employees. SeeU.S.
Customs, 38 FLRA 787. Furthermore, the proposal does not impact
on the number of employees per shift, for here, the Union sought only to
negotiate a method to select crew assign-ments by seniority.

As already noted, when the instant change was implemented by
Respondent, all eight employees at the Radar Center were of the same wage
grade, and certified by their supervisor as being equally qualified to perform
their job duties. These employees all had the same position description, and
performed the same duties. Although Respondent argues that it needed to
maintain the flexibility to place a more experienced mechanic, a WG-11, with a
newly hired, WG-8 mechanic, but the record demonstrated otherwise, because at
the time the change was implemented, the mechanics were equally qualified WG-11
mechanics and there were no work related distinctions between these
employees.(20) In these circumstances, it
appears that the Union's proposal did not affect management's right to assign
work.

Accordingly, it is found that the subject of crew assignment changes
was substantively negotiable.

C. The parties' collective bargaining agreement does not cover the
matter in dispute.

A new framework for determining whether a provision in a contract
covers a matter in dispute was established in Social Security
Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). First, the
Authority determines whether the matter is expressly contained in the
agreement, although recognized exact language is not required. If the provision
does not expressly encompass the matter, the Authority determines whether the
subject is inseparably bound up with, and thus plainly an aspect of a subject
expressly covered by the contract.

Respondent admittedly has a bargaining obligation on the issue of crew
assignments if bargaining is requested, but presents a two-fold argument
concerning whether it had an obligation to give the Union advance notice of the
change. First, it asserts that provisions in the Agreement allow it to make
changes which are not significant without prior notification.(21) The provisions relied on by
Respondent, Article 3, Sections 3-4, simply restates statutory rights
and obligations. Thus, Section 3 discusses management's rights under
section 7106 of the Statute and while Section 4 recognizes that under the
Statute, and current case law, that even if management rights are exercised, a
bargaining obligation over procedural and impact issues still remains.(22) Then it suggests that it was
permitted to make the crew assignment change, without notice to the Union,
under Article 20, § 3 of the Agreement because it resulted in
only a temporary adjustment in the employees' schedule. Regarding this
argument, Respondent's own witnesses seem to disagree on the temporary or
permanent nature of the change in crews in March 1992. Furthermore, the record
demonstrates that the change was more than merely a temporary adjustment. The
change in crew assignments not only effected employees in the month following
the change in March 1992, but the effects of the change were experienced for
many months to follow. After the change in crew assignments, an employee who
scheduled a vacation around his four day break for December 1992 would find
himself having to take annual leave, or rearranging his vacation plans.

Based on the foregoing, it is found that the change was not a temporary
adjustment, and therefore, the subject is not covered under the parties'
Agreement and that the contractual provisions relied on by Respondent does not
reveal that the Union waived any right to bargain concerning the realignment of
the Radar Center crews.

3. Respondent did not fulfill its duty to bargain and the parties
did not reach impasse at the February 5, 1992 meeting.

The record reveals that when Respondent posted the crew assignment
change in February 1992, effective March 1992, it had not fulfilled its
bargaining obligation, and the parties had not reached impasse. When Respondent
first posted the crew assignment change in January 1992, the Union expressed
its concerns of how the change would impact on employees, and then made a
written demand to bargain. The demand to bargain included the proposal that
Respondent hold the crew assignment change in abeyance until the change was
negotiated. Thereafter, Respondent opted to pull down the crew assignment
change and bargain with the Union over the issue. After notifying Terry of a
"special meeting" on February 5, 1992, the Union proposed the changes be
selected by seniority, and raised additional concerns of how the change would
effect employees leave. Respondent informed Terry that it would consider the
proposal and that the parties would discuss crew realignment in the future.

Based on these facts, Neilson, who works at Travis, and was not in
attendance at the February 5, 1992 session, concluded that Respondent had
fulfilled its bargaining obligation and that Respondent should implement the
crew realignment. She considered the fact that Respondent's managers had
reassured her that they would fully accommodate employees on the leave
issue.

A. The crew assignment change was not necessary for the functioning
of the agency.

Respondent cites personality difficulties, safety concerns and
performance concerns which it contends are "inextricably linked to the core
. . ." of its mission as reasons for realignment of the crews.

It is clear that an agency is obligated to bargain before implementing
a change in the conditions of employment of its represented employees.
Department of the Air Force, Scott Air Force Base,
35 FLRA 844, 852 (1990). The only potentially applicable exception is
that of an acute need to implement the change before the negotiations,
that is, that expedited implementation was required, "consistent with the
necessary functioning of the agency." Social Security Administration,
35 FLRA 296, 302 (1990).

Case law reveals matters dealing with the duty to maintain the
statusquo while a bargaining impasse is reached before the
Federal Service Impasses Panel. As articulated more fully in U.S. Department
of Housing and Urban Development and U.S. Department of Housing and Urban
Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986),
the principle applied in those cases is that the statusquo
must be maintained to the extent possible, that is, to the extent consistent
with the necessary functioning of the agency. When an agency chooses to avail
itself to this exception and thus to alter the statusquo,
it must be prepared to provide affirmative support for the assertion that the
action taken was consistent with the necessary functioning of the agency. The
Authority has also indicated that the phrase "consistent with the necessary
functioning of the Agency, may be accurately paraphrased as "necessary for the
[agency] to perform its mission." Department of Justice, United States
Immigration and Naturalization Service, United States Border Patrol, Laredo,
Texas, 23 FLRA 90 (1986).

Implementation of the crew assignment change before the completion of
bargaining was not necessary for the functioning of Respondent as contemplated
by the Authority. The crews had been together for over a three year period, and
there is no evidence of employees being disciplined prior to the change for not
completing assignments. In fact, Dzuba testified that when he spoke to
employees about accomplishing maintenance tasks, they responded. In addition,
Respondent contends that it realigned crews in the past under circumstances
similar to this change without deferring to employees desires. Such an argument
completely ignores the fact that there was no exclu-sive representative and
therefore, no bargaining obligation at that time. Furthermore, the fact
that Respondent did not implement the change when it had planned to on
February 1, 1992, undermines any cogent argument that this change was
necessary to perform its mission. In these circumstances, it is found that
the crew realignment was not "consistent with the necessary functioning of
the agency." Under these conditions it appears that there was no necessity for
Respondent to implement the crew assignment prior to fulfilling its bargaining
obligation.

B. The parties were not at impasse following the February 5, 1992
meeting.

It has been held that an agency violates the Statute when implementing
changes in conditions of employment if it implements the changes absent an
agreement by the parties, timely invocation of the services of the Federal
Service Impasses Panel after impasse following good faith bargaining, or waiver
of Union bargaining rights. U.S. Department of the Air Force, 832d Combat
Support Group, Luke Air Force Base, Arizona, 36 FLRA 289 (1990).
In Luke, supra, it was found that the parties were not at impasse
since the respondent would not deviate from its intention to implement the
change; the union's proposal not to implement was negotiable; impasse was not
declared; the union clearly was not refusing to continue negotiations; there
was no waiver by the union; and, no overriding exigency requiring immediate
implementation. Furthermore, when the parties exhibit a willingness to bargain
no impasse exists. See, also, Davis-Monthan Air Force Base,
Tucson, Arizona, 42 FLRA 1267 (1991).

The record discloses that following the February 5, 1992 meeting,
the parties were not at impasse with respect to crew assignment changes as
contemplated by the Authority in Luke, supra. Rather, Respondent
expressed a willingness to consider the Union's proposal, meet in the future,
and never declared the parties to be at impasse. Nor did the Union seek the
services of the Federal Service Impasses Panel. It must be kept in mind that
the Union had negotiable proposals out-standing, including one requesting that
the change be held in abeyance pending completion of negotiations. SeeUnited States Department of Justice, Immigration and Naturalization Service,
Washington, D.C., 31 FLRA 145, 154 (1988) (holding agency had
obligation to bargain over proposal to maintain statusquo
before implementing a change in employment conditions). Additionally, the
actions of Respondent's representatives at the February 5 negotiation
session demon-strate that the parties were not at impasse, and left the Union
with the notion that future negotiation sessions would take place. In this
regard, Respondent told the Union that it would consider the proposal on
seniority and check with civilian personnel. Hayes also told Terry that he
would be willing to discuss the implementation of the crew changes in the
future.

Since neither of the parties declared an impasse but seemed to be
convening the meeting until a later date, the Union could have reasonably
believed that Respondent was considering its proposal by displaying a
willingness to discuss the subject in the future. Consequently, when Respondent
implemented the crew assignment change by posting the schedule on
February 14, 1992, although the parties had discussed the crew
assignments, they were not in agreement, or at impasse, and the Union had not,
as found earlier, waived its bargaining rights concerning this issue.

Finally, Respondent's expressed willingness to "accommodate" employees
annual leave problems created by the change, does not relieve it of the
obligation to bargain over the change.

Based on the above, it is found that Respondent implemented a change in
conditions of employment without fulfilling its bargaining obligations in
violation of section 7116(a)(1) and (5) of the Statute. It is further found
that the change in crew assignment was a substantively negotiable matter as to
the eight electronics mechanics who were equally qualified, and possessed the
same grade and position description. Finally, it is found that the change in
crew assignments had more than a deminimis impact on
bargaining unit employees, thereby, giving rise to an obligation to bargain the
impact and implementation of the crew assignments.

With respect to the remedy in this matter, the General Counsel
maintains that a statusquoante is the only
appropriate remedy in this matter. After reviewing Respondent's argument and
applying the five factors of Federal Correctional Institution,
8 FLRA 604 (1982) it is found that
a statusquoante remedy is appropriate in
this case.

Accordingly, it is recommended that the Authority adopt the
following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station,
Point Arena, California, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of our employees
exclusively represented by the National Association of Government Employees,
Local R12-85, AFL-CIO by changing crew assignments of electronics
mechanics at the Radar Maintenance Work Center, without first completing
bargaining with the Union over the decision to change crew assignments, or over
the procedures for implementing the change and appropriate arrangements for
affected employees.

(b) Refusing to bargain with the National Association of Government
Employees, Local R12-15, AFL-CIO over the changes in working conditions of
unit employees, such as the method by which crew assignments of Radar
Maintenance Work Center personnel are made.

(c) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Upon request of the National Association of Government Employees,
Local R12-85, AFL-CIO, rescind the crew assignments of the electronics
mechanics at the Radar Maintenance Work Center that were made on
February 14, 1992 (to begin March 1, 1992), and return to the crew
assignments which existed prior to that date.

(b) Give notice to, and upon request, negotiate with the National
Association of Government Employees, Local R12-85, AFL-CIO over the
decision to change crew assignments of electronics mechanics at the Radar
Maintenance Work Center.

(c) Post at its facilities in Olam Southwest Air Defense Sector (TAC),
Point Arena Air Force Station, Point Arena, California, where bargaining unit
members represented by the National Association of Government Employees,
Local R12-85, AFL-CIO, are located, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Commanding Officer, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the San Francisco Region,
901 Market Street, Suite 220, San Francisco, CA 94103-1791, in
writing, within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.

Issued, Washington, DC, December 12, 1994

________________________ ELI NASH, JR. Administrative Law
Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilateral change working conditions of our
employees exclusively represented by the National Association of Government
Employees, Local R12-85, AFL-CIO by changing crew assignments of
electronics mechanics at the Radar Maintenance Work Center, without first
completing bargaining with the Union over the decision to change crew
assignments, or over the procedures for implementing the change and appropriate
arrangements for affected employees.

WE WILL NOT refuse to bargain with the National Association
of Government Employees, Local R12-85, AFL-CIO over the changes in working
conditions of unit employees, such as the method by which crew assignments of
Radar Maintenance Work Center personnel are made.

WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.

WE WILL, upon request of the National Association of
Government Employees, Local R12-85, AFL-CIO, rescind the crew assignments
of the electronics mechanics at the Radar Maintenance Work Center that were
made on February 14, 1992 (to begin March 1, 1992), and return to the
crew assignments which existed prior to that date.

WE WILL give notice to, and upon request, negotiate with
the National Association of Government Employees, Local R12-85, AFL-CIO
over the decision to change crew assignments of electronics mechanics at the
Radar Maintenance Work Center.

__________________________(Activity)

Date:____________ By:______________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced or covered by any other
material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, San Francisco
Region, 901 Market Street, Suite 220, San Francisco, CA
94103-1791, and whose telephone number is: (415) 744-4000.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. This case was considered and all
deliberations were completed prior to the date on which Donald S. Wasserman was
sworn in as a Member of the Authority. Therefore, Member Wasserman did not
participate in this decision.

2. The Agency relied on Article 3,
Section 2 of the parties' collective bargaining agreement, which provides, in
part, that "[t]he EMPLOYER retains the right . . . [i]n accordance with
applicable laws . . . to determine the personnel by which the EMPLOYER's
operations shall be conducted . . . ."

Issues which can properly be raised under an appeals procedure may
not be raised as unfair labor practices prohibited under this section. Except
for matters wherein, under section 7121(e) and (f) of this title, an employee
has an option of using the negotiated grievance procedure or an appeals
procedure, issues which can be raised under a grievance procedure may, in the
discretion of the aggrieved party, be raised under the grievance procedure or
as an unfair labor practice under this section, but not under both procedures.

4. In particular, the ALJ found that:
(1) the change in crew assignments had a foreseeable impact on unit employees'
working conditions which was more than deminimis; and
(2) implementation of the crew assignment change before completion of
bargaining was not necessary for the functioning of the Agency. The Agency does
not except to these findings.

5. The same provision also applies to
determining whether a ULP charge bars a subsequently-filed grievance. The
Authority's approach to determining whether a bar exists under section 7116(d)
applies in the same way without regard to which action is filed first.

6. Excepted from this requirement are
matters wherein, under section 7121(e) and (f) the Statute, an employee has an
option of using the negotiated grievance procedure or an appeals procedure.

7. Contrary to the Respondent's
assertion that the Authority requires "that the parties be the same in both the
grievance and the unfair labor practice[,]" Exceptions at 13, the Authority
requires only that both actions be initiated at the discretion of the aggrieved
party. In American Federation of Government Employees, AFL-CIO, Local 1411
v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992), for example, the court
sustained the Authority's decision that a ULP charge filed by the union barred
a subsequent grievance filed by an individual employee where both actions
rested on the same factual predicate and alleged the same statutory and
contractual violations. There is no dispute in this case that both the
second-step grievance and the ULP charge were filed in the discretion of the
same aggrieved parties.

8. The ALJ compared the legal theory
underlying the ULP with the legal theory underlying the second step grievance,
and not the first step grievance. Because no exception was taken to the ALJ's
reliance only on the second step grievance, we also will examine only that
grievance. We note that both the first and the second step grievances raised
the same issue, however, and that both were filed before the ULP charge.

9. The first step grievance had stated
that: "The employees in all other work centers at this Station are allowed to
alternate between four (4) alternative work schedules on a regular basis." G.C.
Exh. 12. The grievants stated their belief that they had been "unjustifiably
segregated." Id.

10. In this regard, both the first and
second step grievances and the Station Manager's response to the second step
grievance refer to the crew schedule changes that were the subject of the ULP
charge. These references are consistent with the Judge's conclusion, to which
no exceptions were filed, that both the grievance and the ULP arose from the
same set of factual circumstances. They do not establish, however, that the
same legal theories were involved.

11. In the grievance, the Union
requested bargaining over selections for "crew schedule[s]." Attachment 1-a to
G.C. Exh. 1(d). In the ULP charge, on the other hand, the Union objected to the
Agency's alleged failure to bargain over "crew personnel" changes. G.C. Exh.
1(a). As the only changes effected by the Respondent related to crew pairings,
not hours of work, it would be reasonable to read the reference to "crew
personnel" in the ULP charge as encompassing only assignments of affected
employees to pairs. It is unclear whether the different wording in the
grievance indicates that bargaining over different matters was requested.
Specifically, in view of the grievance's reference to the four work schedules
available to other of Respondent's personnel, the "crew schedule" bargaining
referred to therein could be read as encompassing various hours-of-work
schedules.

12. It is axiomatic that the same
remedy may be awarded as a result of pursuing a myriad of legal theories.
See, e.g., U.S. Department of the Treasury, Internal Revenue
Service, Helena District and National Treasury Employees Union,
Chapter 42, 37 FLRA 1410, 1422 (1990) (Back pay ordered as remedy for
race and national origin discrimination); U.S. Department of the Treasury,
Customs Service, Dallas, Texas and National Treasury Employees Union, Chapter
140, 37 FLRA 1022, 1026 (1990) (Back pay ordered as remedy for reprisal
taken against employees for whistleblowing activities); American Federation
of Government Employees, Local 1698 and Department of the Navy, Aviation Supply
Office, 34 FLRA 939, 943 (1990) (Back pay ordered as a remedy for the
violation of a collective bargaining agreement); American Federation of
Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital,
Columbia, S.C., 32 FLRA 1223, 1226 (1988) (Back pay ordered as remedy for
improper disciplinary action); Federal Aviation Administration, Washington,
D.C., 27 FLRA 230, 234 (1987) (Back pay ordered as remedy for
refusal-to-bargain). Even though back pay was ordered as a remedy in all of
these cases, each case advanced a different issue and proceeded on a distinct
legal theory.

13. We note that the Fourth Circuit
also has interpreted section 7116(d) as encompassing an analysis of factual
predicates and legal theory. Department of Commerce, Bureau of the Census v.
FLRA, 976 F.2d 882, 889 (4th Cir. 1992) (Commerce). Commerce
involved the first sentence of 7116(d). However, the court stated that the
Authority's test under the second sentence, examining whether the two actions
arose from the same set of facts and are based on the same legal theory, is
"transferable[,]" 976 F.2d at 889, and the court applied that test to
determining whether, under the first sentence of section 7116(d), an issue may
be raised as a ULP.

14. For a discussion of this aspect of
the first sentence of section 7116(d), seeUnited States Small
Business Administration, Washington, D.C., 51 FLRA 413, 422 (1995), ("when
the factual predicate of the ULP and the statutory appeal is the same, and the
legal theory supporting the statutory appeal has been or could properly be
raised to the MSPB, we will decline to assert jurisdiction over the unfair
labor practice pursuant to [the first sentence in] section 7116(d)." (Emphasis
added.))

ALJ's Footnotes Follow:

2. Electronics mechanics at the Radar
Center alternate working alone the last two days of the day shift, thus, having
one or two days off.

3. The record includes a yearly
schedule for 1993, and the implementation of the crew changes occurred in March
1992, the schedule is similar to previous schedules drafted by Terry in prior
years, and this schedule has been used by supervisors as well.

4. Dzuba testified that on one
occasion, back in 1987-88, before the Union was certified as the
exclusive representative and prior to the onset of any bargaining obligations,
Respondent realigned crews because two employees were not getting along. A 1988
crew realignment, prior to the Union being certified, is not relevant.

5. While there is testimony that
Respondent maintained a flexible annual leave policy and was willing to
accommodate employees' leave schedules, a change in an employee's crew could
force that employee, who had scheduled a vacation, to take annual leave when
those days would normally be regular days off.

6. During the initial crew assignment
change in January 1992, Terry was informed that the reason for the crew change
was because two employees were not getting along and work was not being
accomplished. Dzuba, however, testified that no employee had been disciplined
for not completing an assignment. While Respondent had the right to make crew
assignment changes for disciplinary reasons between two employees, since all
the employees were equally qualified, the Union would still retain the right to
negotiate crew assignments for the remaining crews by seniority.

7. It is noted, that the General
Counsel does not raise the question of advance notice in either its opening
argument or in its brief. Therefore, it is deemed unnecessary to address the
issue of whether adequate notice was given to the Union in this matter.

8. While Article 3, § 4
speaks in terms of Respondent's obligation over "significant changes," the term
is not defined in the Agreement. Therefore, it is my view that the
deminimis standard set out in Social Security
Administration, supra, is applicable in this case.